“This GALs is the best” – An open letter to a Lawyer about representing a clients needs

When a large bureaucratic system is broken, with no management oversight and disdain for “users” of the system, it has a corrupting effect on everyone who must work in or use the system.

Many of our friends have commented with puzzlement about the weakness of their lawyer’s defense of their divorce and custody issues. Some divorce lawyers talk a good game to clients in the office or on the phone, but wilt in court. There seems to be an effort to avoid ruffling the feathers of the GAL- or worse- the judge. Most clients expect that an expensive attorney will defend their case vigorously. It is confusing at first for clients to see the lawyer shift roles from “office superman” to “courtroom wimp”. Gradually, many clients will recognize that there is something wrong with this picture.

There is frequently only a behavioral acknowledgment by your lawyer that he is working in a corrupt, totalitarian, insensitive and often illogical system. Lawyerly courage in defending your case will not be rewarded by the court, and a brave lawyer’s future practice in that court is apt to be very dim. But the role shift from “superman” to “wimp” is so puzzling- so contrary to what we expect, that it may take a while to recognize and to overcome our denial (“this can’t be happening”).

The intent of sharing this letter, from which identities have been removed as much as possible, is not to condemn a particular lawyer’s lack of courage and avoidance of conflict in court. It is an attempt to analyze further, why the family court system does not work for many families. There are those in the Judicial Branch, who say that the current system works if you just use it properly. This is true in theory, on paper, but … there is widespread recognition by lawyers that they are tip-toeing through a “minefield” when they challenge a Guardian ad litem in front of a judge. It is about challenging judicial outsourcing- challenging a Guardian ad litem as the judge’s deputy. Guardians ad litem as “junior judges, isn’t on the books, but it is no less real.

It is this unspoken, behavioral acknowledgment, this awareness of professional danger that is more powerful that the rules on paper. A lawyer SHOULD be able to challenge a Guardian ad litem. However, there are enough who don’t, because of professional fear of the consequences of a challenge. We think that the problem derives from the GAL’s relationship to the judge. If the Guardian ad litem were only representing the child, it might make challenges easier.

Lawyerly fear is as powerful a determining factor, which limits Guardian ad litem challenges, as are the rules which say it is possible to challenge!

Here is an example:

Subject: Letter to a divorce lawyer

Divorce Attorney, Esq

Dear Attorney,

I have been copied on your response to your client’s e-mail, and I am offering my own reactions to it. In it in you are effectively blaming your client for “misunderstanding”- what I would see as your complete disregard of his recent written requests to you about handling his GAL’s bill. In two e-mails he asked (1) that you take no further action on the matter of his GAL’s outrageous bill without first informing him of your plans, and (2) that you include, as an addendum, his memo to you proposing what he wants to see: (a) a cap on the bill, and (b) a series of very detailed reasons why the bill is problematic in its entirety. You have ignored both of his written requests on this matter. Furthermore, you have offered no reasons for your disregard.

It is very disturbing for all of us to witness this m.o., and it is not for the first time. It raises questions about your execution of your client’s wishes, and also what you are doing and what are your aims? Perhaps, mistakenly, you feel you know better than your client what he wants or what he can achieve? Or … does a failure to discuss the issues in advance with your client, allow you greater freedom of action to avoid personal professional awkwardness with the other players? Whose interest is served by this m.o.; yours or your client’s?

You may recall that we had a number of, at first vaguely-formed, questions from the onset of the whole GAL adventure. At the beginning of the divorce. Initially, we knew little about GALs and the GAL process, so like any novices entering this arena we relied on you, as an experienced lawyer to inform us. As time went on, we increasingly wondered with alarm about how you were handling the GAL and your aims- if any? It lead us in desperation to hire another attorney to sort things out. The contrast between this attorney, a former GAL, and you in dealing with the GAL, was “night and day”. No longer was it necessary to deny the reality of gross incompetence, harmful decisions and flagrant crookedness on the part of the GAL. But now that his attorney is out of the picture, there appears to be a reversion to your earlier policy of near total accommodation to the GAL.

Let me raise a few direct questions that have made us all very uneasy for a long time about how you are handling things:

1.) “This GAL is the best!” was your unequivocal endorsement at our first meeting with you in your office, where we addressed our puzzlement about the need for a GAL in this case. At that time, we never questioned the basis for your endorsement. But as time went on, and the GAL showed her colors, we asked ourselves: “How did you know? Had you used her in your professional work before? Were you acquainted with her in more personal terms, as a client or as the relative of a client? What did “best”mean? Informed consent in agreeing to the GAL process is important, and we assumed you were helping us to take that step. Had you some professional basis for your endorsement of this GAL when you told us she was “the best”? What basis?

2.) More recently you have altered your endorsement to: “I’ve never seen her act this way before.” The inference might be from this observation that it’s the our family that brings out her crookedness; it’s situational. You have never told any of us at any time during this process, exactly how you, as a lawyer, evaluate her performance as a GAL. Is she top shelf or substandard? Yes, you have reluctantly moved on the Motion to Remove, but only after extreme pressure, and after including- without my permission- a strong, confidential memo from me to the Social Work Board that should never have been a part of the motion, a signal to the GAL (it’s really just our family). Do you currently think that she is OK, or a menace to the public? Would you endorse her to future clients? Why did you table our detailed formal critique, a thoughtful response to the glaring deficiencies and errors in her final GAL report? In so doing you protected her from fire, but it wasn’t in your client’s interest. It is this sort of thing that makes us feel that you are not really on our team.

3.) Increasingly, our family has wondered about whether there is some latent or actual conflict of interest of some kind that underlies your kid gloves approach to the GAL. Do you or your firm currently have (or have you had) other business with her or members of her family? Have members of your family had involvement with her- clinical or otherwise? On every opportunity when there is a need to confront her poor judgment with actual evidence, you seem to write a stern letter, then dodge or back off, effectively making the GAL the deciding judge in you client’s affairs. It has been a disturbing pattern. Our lawyer consultant demonstrated that total surrender to this GAL wasn’t necessary to relate in a professionally respectable manner to a GAL. Is there a conflict?

4.) Your current plan for a 1/2 hour meeting in court to resolve the matter of the GAL’s bill is an example of what we are talking about. Given the limited time you are requesting and with no prior list of justifying reasons for why the bill is outrageous, you are passing the decision to the GAL, the opposing attorney and the Judge. We’ve seen this program before, and it has always been a very bad one whatever happens in the privacy of a phone conference or in judges chambers with no client witnessing the actions, your negotiations are dismal. We invariably lose. In terms of the child’s final custody decision. In the divorce decree, you have actually managed to negotiate less time for the child with his father than they had before the divorce! It is hard to understand how you could negotiate less or why.

5.) I would suggest to your client that he ask you to withdraw your request for a hearing on the GAL’s bill. Immediately. You have no endorsement for the present action from your client. For things to proceed on this matter, you need your client’s endorsement, you need a written financial proposal to the court that your client agrees to, you need a list of deficiencies in the bill distributed in advance with the hearing request, and for that it is obvious that you need more than 1/2 hour. It also needs to take place in the courtroom, not in the privacy of chambers, so that your client can watch your actions and guide you in what he will accept. You also need to be prepared to decline to compromise on unfair settlements. Let the judge decide if he is inclined to be punitive.

This is a very difficult letter, long over due. You might ask from our list of dissatisfactions why we continue with you? We have asked ourselves the same question many times. Our answer is that at this point, we feel totally trapped. You have all of the records of the case, we cannot begin afresh and bring a newcomer up to speed, nor can we afford a new retainer. We are stuck. As a way out of our mutual dilemma, I would ask that you consult with our consulting attorney on the GAL’s bill and how she would resolve it. And proceed accordingly. your client cannot afford the GAL’s bill. It will cripple his ability to provide for his son (and himself). It needs strong action

Sincerely,

Involved Family Member
(On behalf of the parent)

Comments are closed.